Monday, February 8, 2016

A labor union filed an Uber-huge representation petition with the NLRB

Politico New York reported last week that International Brotherhood of Electrical Workers, Local 1430, petitioned the NLRB to represent 600 New York area Uber drivers. You can read the representation petition here.

Uber is locked in a battles all over the county with its drivers, defending lawsuits claiming that its drivers are employees for wage-and-hour purposes. This case, however, brought in the most employee friendly forum Uber drivers could possibly find, is the first attempt by drivers to organize. And because of the employee-friendliness of the NLRB, this story has the potential to be absolutely huge.

Of all of the issues facing employers in 2016, the most significant is the definition of who qualifies as an employee. The Department of Labor is examining the differences between employees and independent contractors, and employees and interns, the DOL (both its Wage and Hour Division and OSHA) and the NLRB are examining joint employers, and the EEOC is examining LGBT rights

We are a crossroads in the very definition of the employment relationship, and Obama’s federal agencies are leading the charge.

Mark my words, the NLRB will conclude that Uber drivers have the right to organize as employees. The question, however, is whether that conclusion will hold up in court. 

The day after the IBEW filed its Uber petition, the 11th Circuit Court of Appeals, in Crew One Productions, Inc. v. NLRB [pdf], vacated an NLRB decision which had concluded that Atlanta-area stagehands were employees of the company that refers them to live-event promoters.

According to the 11th Circuit, the NLRB erred because:
  1. Crew One does not have the right to exercise control over the stagehands.
  2. The failure to withhold taxes weighs strongly in favor of a determination that the stagehands are independent contractors.
  3. The independent contractor agreements are evidence of the parties’ intent.
  4. Negotiations over pay are irrelevant.
  5. The stagehands do not perform work that is part of the business of Crew One. 
Critical to the 11th Circuit’s decision, and similar to Uber’s business model:
The stagehands also have entrepreneurial interests. The regional director found that the stagehands “are free to accept or reject offered work without retaliation and are free to accept work from other labor providers.” 
Under the Crew One analysis, Uber drivers should qualify as non-unionized independent contactors. Because, however, the NLRB will conclude that they are employees, this story is one of the stories to watch in 2016.